Corporate Persons
Author(s): Roger Scruton and John Finnis
Source: Proceedings of the Aristotelian Society, Supplementary Volumes, Vol. 63 (1989), pp.
239-274
Published by: Blackwell Publishing on behalf of The Aristotelian Society
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CORPORATE PERSONS
Roger Scruton and John Finnis
I-Roger Scruton
After begging and beseeching to several hard riders, who were
wantonly pressing upon the pack, to no purpose, he let out at
them in rather unmeasured terms, to the utter astonishment of
one unfortunate wight, who claimed the privilege of exhibiting
himself, upon the plea of being a committee man, and
expressed his surprise at Mr. Nichol for using such dreadful
language to one of his consequence. 'The Committee be d-d,'
said Mr. Nichol, 'you are not worth d-mning singly, so I'll
d-n you all in a lump'.
R. T. Vyner, Notitia Venatica:
A Treatiseon Fox-Hunting,
London 1842, p. 6n.
I
Introduction.
Prices in a market are determined by the choices of
and
sellers;decisions in a committee are determined by
buyers
the votes of members. In the first case, however, there is no
decision as to what the price of anything should be. Prices arise
by an 'invisible hand' fromchoices which do not intend them. In
the second case a decision is taken by the committee as a resultof
common deliberation on the question before it. The difference
between the two cases is hard to capture precisely, is barely
noticed in the sociological theory of 'groups', and is strictly
imperceivable to the theory of social choice, as this has been
explored by Kenneth Arrow and his followers'. Yet its political
significance is enormous, since it underliesmuch that is at issue
between socialistsand their opponents. Plan versusmarket, state
versuscivil society, 'social' versusproceduraljustice, the 'general
will' versusthe will of all: in all these oppositions, I suspect, lurks
1See the comparison between marketsand voting in Chapter I of K. J. Arrow, Social
ChoiceandIndividualValues,New York 1951. As Alfred Mackay puts it: 'the problem of
social choice is this: how can many individual preferences be combined to yield a
collective choice?': Arrow's Theorem.The Paradoxof Social Choice,New Haven and
London, Yale University Press, 1980, p. 1. So defined, the problem is indifferentto the
distinction I have in mind.
240
I-ROGER
SCRUTON
some instance of the distinction between collective deliberation,
and the unintended outcome of an 'invisible hand'.
A first step towards understanding that distinction-but only
a first step-is through the study of a concept that has been
unjustly neglected by contemporary social and political philosophy: the concept of the corporate person. Committees, as a
rule, are corporate persons; markets are not, and cannot be.
That sentence may not be clear to the reader now; but I hope to
explain it in the course of this paper.
Consideration of collective action in recentjurisprudencehas
tended to focus on something vaguely called the 'group'2, or else
to offer some updated version of what Maitland called the
'bracket theory', but which we, with the hindsight3of Russellian
logic, might call the 'logical construction theory'. According to
this theory-defended in a sophisticated form by H. L. A. Hart4
-the rights and duties of corporationsare created by the law, in
order to adjudicatethe independentlegal interestsof individuals.
The concept of the corporate person, with its own rights and
duties, is a procedural device, whereby the business of
adjudication is made more manageable.
Theories of responsibility rarely mention the liabilities of
groups-even though more harm has been done, and wilfully
done, by groups than by individuals;while theoriesof the person
and of personal identity proceed as though human persons
were the only persons that there are. Modern political
philosophy usually makes no distinction between institutions
with personality and those without it. Nor does it see the
importance of that distinction, or the manifest catastrophe of a
political order (such as that established and upheld by
communism) in which all forms of corporate personality have
been reduced to the 'masks' or 'fictions' which positivistic
jurisprudence wrongly holds them to be. In this paper I shall
outline a defence of the view--traditionally associated with
Gierke, Maitland and Figgis-that human individuals derive
2See the discussion in A. M. HonorS, 'Groups, Laws and Obedience,' in OxfordEssays
Second Series, ed. A. W. B. Simpson, Oxford, Clarendon Press, 1973.
in Jurisprudence,
3F. W. Maitland, introduction to Otto von Gierke, PoliticalTheoriesoftheMiddleAges,
tr. Maitland, Cambridge, Cambridge University Press, 1900, p. xxiv.
and
4 H. L. A. Hart, 'Definition and Theory inJurisprudence', in EssaysinJurisprudence
Philosophy,Oxford, Clarendon Press, 1983, pp. 40-46.
CORPORATE PERSONS
241
their personality in part from corporations;and I shall indicate
why it matters that corporate personality should be consecrated
in our feelings, and acknowledged in our laws.
II
Insofar as the corporation has
Firm, Churchand Genossenschaft.
in
recent
philosophical discussion, it has been in the
appeared
the
of
as
firm,
represented in English law by the limited
shape
At
least one philosopher-Peter French5liability company.
has noticed that, unless we are prepared to assign rights and
duties to firms over and above the rights and duties of their
members, we shall be without the needed remedies against
them. Nevertheless, French sees little virtue in the corporation,
and although recognizing its claims to moral personality, does
not view it as an end in itself,with an intrinsicclaim to respectand
protection. So far as I know, only one recent philosopherMichael Novak'-has been bold enough to assigna full spiritual
identity to the industrial corporation, and to discover in its
workingsthe transfigurementsof Grace. Others have gone to the
opposite extreme, and endeavoured to show that the legal
personality of the corporation correspondsto no moral reality.
In an ingenious argument, Meir Dan-Cohen has maintained
that legal personality is compatible with the existence of the
corporation as a mere 'intelligent machine'-one that could be
owned and staffed by computers'. On the other hand, for all
Dan-Cohen shows, the human being may be an 'intelligent
machine'-and if that were so, I contend, it would have no
bearing whatsoever on his moral personality.
The firm will not be the main subject of my discussion, and it
is worth explaining why. The firm is an association for a
purpose, a means to an end, and is usually treated as such by
those who work for it. It also stands in a contractual relation to
'Peter A. French, Collectiveand CorporateResponsibility,New York, Columbia
University Press, 1984.
'Michael Novak, Towardsa Theologyof the Corporation,
Washington, American
Enterprise Institute, 1981. Novak gives seven signs of God's Grace in the corporation:
creativity, liberty, birth and mortality, the social motive, the social character, insight
(the primary capital), and the risk of liberty and election.
A Legal Theoryfor Bureaucratic
7Meir Dan-Cohen, Rights, Personsand Organisations:
Society,Berkeley, University of California Press, 1986: see especially the 'story of the
personlesscorporation' (pp. 46-51).
242
I-ROGER
SCRUTON
its employees, and is dissoluble at will. Firms naturally lend
themselves to the view that personification in law is a mere
convenience, a device for protecting and limiting some 'common
objective', and not the legal recognition of a new moral reality.
Roman law recognised two kinds of association: the societas
and the universitas.A societasis constituted by a contractual
relation between its members; its assets are owned by the
members, subject to the terms of the contract which binds them.
is a separate legal entity, which can hold property,
A universitas
and has rights and obligations distinct from those of its
members. (An example is the collegium:
perhapsthe earliestform
of corporation in law.) There is no decisive Roman authority for
the view that the universitasis a personas;nevertheless the
universitasis often taken as a paradigm instance of corporate
it is not reducible to a contractual
personality-precisely because
relation between its parts. Legally speaking, the modem firm
is like a universitas;morally speaking, however, it is a
partnership for gain, and in this resembles the societas';hence
firmshave played only a minor role in the thinking of those who
defend the personality of corporations.
Canon law described the corporate person as a personaficta'.
Its corporators stood in law as guardians of property which
belonged in fact to no-one, and guardianship, rather than
agency, became the mark of legally competent association. In a
parallel, but more subtle, development, English law began to
speak of a 'trust', deriving a law of trusts separate from the
common law of the kingdom, by appeal to principles of equity
which owed their authority in part to the canon law."
In Das deutscheGenossenschaftsrecht,
Gierke made the bold
that
of
the
the
canonist
suggestion
theory
corporation-and all
those views which derive from it-arises from the desire to
8See P. W. Duff, Personality
in RomanPrivateLaw, Cambridge, Cambridge University
Press, 1938, pp. 35-66 and 206-237, in which Duff discusses the various theories of
corporate personality and their applicability to Roman Law. On the collegiumand its
importance in Roman society, see Th. Mommsen, HistoryofRome,tr. W. P. Dickson, 2nd
Edition, New York, Scribners, 1868, vol. 1, pp. 218-231.
'See also the interesting application of the Roman Law distinction to 'Civil
Association' and its modem competitors, in Michael Oakeshott, On HumanConduct,
London, 1974.
vol. III, p. 279.
'LDasdeutscheGenossenschaftsrecht,
" Maitland, op. cit., p. xl.
CORPORATEPERSONS
243
safeguard Natural Law, as the supreme source of right and
obligation'2. The tendency of Natural Law is to confer rights
and duties upon individuals, and to regard all legitimate groups
as arising from, and reducible to, an agreement between their
members. Even when the existence of non-contractual unions is
recognized, the tendency is to see them not in termsof a will and
personality of their own, but as the sign and product of some
'common purpose'among their human parts-who are therefore
the true agents in all corporate actions. Thus the most sustained
recent defence of Natural Law has this to say about the 'group':
A group, in the relevant sense, whether team, club, society,
enterprise, corporation or community, is to be said to exist
whenever there is, over an appreciable span of time, a coordination of activity by a number of persons,in the form
of interactions, and with a view to a shared objective'3.
It is true that Finnis expressly avoids the question of corporate
personality-as does Honore, to whose discussionhe is obliquely
referring"4.He also goes on to gloss the idea of a 'shared
objective' in terms of a 'common good' which soon emancipates
itself from any sharedpurpose, to become a purpose, a will, and
indeed a person, of its own. But perhaps this only goes to show
how difficult it is for the unaided theory of Natural Law to
encompass the subject of this paper.
There is more than one thing wrong with the theory of
corporations which Gierke attributes to the exponents of
Natural Law. It is not true, for example, that all legitimate
associations are reducible to contracts; nor is it true that all
associations are directed to some purpose beyond themselveseven if that is true of the firm and the partnership. Gierke's
Genossenschaft
('fellowship') signified a kind of group friendship,
whose purpose lay at least partly within itself". Gierke's
was never finished. Two substantial portions from it
"2Dasdeutsche
Genossenschaftsrecht
have been translated, one by Maitland (see note 3 above), and one by Sir Ernest Barker,
as Otto Gierke, NaturalLaw and the Theoryof Society,1500-1800, tr. Sir Ernest Barker,
Cambridge, Cambridge University Press, 1934.
"1John Finnis, NaturalLawandNaturalRights,Oxford, Clarendon Press, 1980, p. 153.
" A. M.
HonorS, op. cit.
"
Ethics,Book
Cf. Aristotle'sdistinction among the kinds of friendship, in ANicomachean
VIII. I discuss this at length in SexualDesire,London, Weidenfeld and Nicolson, 1986,
Chapter 9.
244
I-ROGER
SCRUTON
disciple, Figgis, took the church-and in particular the nonconformistchurch-as his example'".And although he (wrongly)
described the church as deriving from a contract between its
members, he was clear that its purpose is bound up with its own
existence, and that you do not join a church for the sake of a
salvation that could be achieved in some other way. If the
church is a meansto salvation, it is a uniquemeans, whose purpose
is inseparable from itself. The communion of the church
includes the communion of the saints, and in joining it you
participate in the sacred gifts,which have their being in the very
act of association. Henri de Lubac expressesthe point in Jesuit
idiom:
[The Church] is either an historic institution or else she is
the very city of God. In the first case, as a society founded
by Christ for the salvation of men, she labours to bring
them to it; she is then a means, and we can say with Pius
IX: 'men were not made forthe Church,but the Churchwas
made for men: propternoshominesetpropternostramsalutem'.A
necessary means, a divine means, but provisional as means
always are. Whereas in the second case, since the Bride is
henceforward but one with the Bridegroom, she is that
mysterious structurewhich will become fully a reality only
at the end of time: no longer is she a means to unite
humanity in God, but she is herself the end, that is to say,
that union in its consummation".
The question whether the church is an end in itself is distinct
from the question whether it is constituted by a contract. The
contractual theory was born among Calvinist sectarians in
Holland, expounded by Voet'8, and transported from that
august source into Scottish Calvinism, whence Figgis derived it.
The Roman Catholic Church seems to endorse the theory in its
Tridentine liturgy, which refers to the church as a compago
spiritualis.But this hardly does justice to St Paul's meaning,
when he describesthe adherents of the church as'members' one
of another, or to the meaning of the Book of Common Prayer,
'6J. N. Figgis, Churchesin theModernState,2nd edition, London, Longmans, 1914.
A StudyofDogmainRelationtotheCorporate
Destinyof
7 Henri de Lubac, S. J., Catholicism:
Mankind,London, Burnes, Oates and Washbourne, 1950, pp. 26-7.
four vols., Amsterdam, 1663 et seq.
'8Gisbert Voet, Politikaecclesiastica,
CORPORATEPERSONS
245
when it refers to 'baptism, wherein I was made a member of
Christ': certainly no contract to which the speakerwas a party!
To cut a long story short, we should distinguish among
associations between the voluntary, the involuntary and the
non-voluntary;between the contractualand the non-contractual,
and, within the contractual, between those constituted by a
contract amongtheir members, and those which contract with
their members; between those with an independent purpose,
those with an internal purpose (e.g. the Church), and those with
no purpose at all; and, within all those, between the personal
and the impersonal. The club that really matters to its members
is voluntary, and joined for the sake of membership. The ruling
purpose of such a club is the club itself. In the eyes of its members
it is not a means but an end: a bond in which you are at rest, as
you are at rest beside your hearth. It is an object of respect and
esteem, and no one who treats it as a mere instrumentto his goals
deservesthe benefit of membership. In using the language of the
Kantian imperative to describe such a club, I merely record the
usual feelings of its members. It is such an association that was
usually in mind, when nineteenth-century writers pleaded for
the recognition of the moral personality of corporations.
III
All of the following can be
The MoralPersonalityof Corporations.
true of corporations (whether clubs, churches or firms):
-they make decisions;
-they act freely and responsibly;
-they have moral rights and duties;
-they have legal rights and duties;
-they can make laws for themselves and their members, for the
breach of which they are held responsible;
-they are objects of praise and blame; of loyalty, pride and
affection; of anger, resentment and hate;
-they are historical beings, which flourish and decline
according to the success of their undertakings;
-they have habits of mind, including moral virtues and vices;
-they stand in personal relations, and can adopt many of the
roles adopted by human persons.A corporationmay even be the
leading character in a drama (as in Wagner's Die Meistersinger).
How are we to interpret those statements? According to
246
I-ROGER
SCRUTON
moraliscomposita,
consisting
Pufendorf,the corporationis a persona
in homines . . . per vinculummorale in unumsystemaconnexi"9.For
Wilhelm von Humboldt, such a composite person 'should be
regarded as nothing more than the union of the members at a
given time'20.Such has been the gut-reaction of liberal thinkers
ever since. However, von Humboldt's suggestionmanifestlyfails
to do justice to the fact that the membershipof corporationsis in
a state of flux. Those who are members at the time when a
decision is executed may not have been members when the
decision was made; while a wholly new membership may have
replaced them before the legal and moral consequences of the
decision are felt. If we were to follow von Humboldt, then we
should adjudicate the affairs of corporations by holding the
present membership individually liable for the deeds of those to
whom they have succeeded, and who may be already dead.
This is both legally absurd and contrary to natural justice.
Furthermore,the continuityof corporateagency is not explicable
in terms of the continuity of individual plans. A corporation
may even survive forperiods,with all its rightsand duties intact,
despite having no members whatsoever. (For example, the
vacant crown, or any other 'corporationsole' currently without
an occupant.)
It is true, as Maitland has demonstrated", that the device of
corporate personality is not strictly necessaryfor the protection
and control of associations--the English law of trusts being a
rival method, whose very existence might tempt us to the view
that 'personality', like 'trust', is a mere creatureof the law which
discerns it, and not something that exists 'in itself'. However,
whenever the rights of beneficiaries are unknowable, trusts
cannot safeguard their interests; and associations with no
specifiable purposes, and no beneficial ownership of property, lie outside the domain of trusteeship altogether. Furthermore, it seems that trusts arose precisely because the
9 Pufendorf, De Jure naturaeet gentium,Chapter 1, sections 12-13.
von Humboldt, Ideen,quoted Gierke, ed. Barker, op. cit., p. 127.
20W.
"
F. W. Maitland, CollectedPapers,ed. H. A. L. Fisher, Cambridge, Cambridge
University Press, 1911, vol. III: especially 'The Corporation Sole', 'The Unincorporate
Body', 'Moral Personalityand Legal Personality', 'Trust and Corporation'. Maitland's
position is summarized in S. J. Stoljar, 'The Corporate Theories ofF. W. Maitland', in
Leicester C. Webb, ed., Legal Personalityand PoliticalPluralism,Melbourne, 1958.
CORPORATE PERSONS
247
law has an inbuilt tendency to recognizepersonality,whether
or not under that description. And this tendency persists,
even in the face of Parliamentary attempts to thwart it.
It was already clear in the celebrated Taff Valecase22, that the
endeavour to free trade unions from the burdens of personality
was in tension with the common law: and this tension has
persistedto the present day, being the source of other, and more
tangible conflicts, as those injuredby the activities of unions seek
a redress that is unjustly withheld from them.
Nevertheless, there has been a desire in Englishjurisprudence
to acknowledge the legal personality of corporations, while
denying their moral personality. This desire reflectsa suspicion
of the German Genossenschaft,
with its Hegelian and Fichtean
overtones. It is a small step, the English liberal supposes, from
Gierke's Genossenschaft
to the corporate state. If Mussolini and
Hitler were more inspired by socialist than conservativevisions
of society, this only serves to show the threat of collectivism
lurking behind the noble conceptions ofGermanjurisprudence,
which found their application, at last, in totalitarian power.
Thus Sir Ernest Barker, distancing himself from Gierke,
argues that no group can incur moralas opposed to legalliability:
'moral responsibility falls only on the individual moral agent
. . . [and] it is a dangerous doctrine which would avert it from
him and make it fall on any transcendental being'23.So far as I
can see, Barker offers two arguments for this position: first, he
contends that we cannot attribute moral responsibility to a
group without also attributing it to members of the group, and
therefore that the responsibility of the members exhausts the
content of corporate liability. Secondly, moral personality
presupposes'psychologicalpersonality'-the 'power or capacity
of self-consciousness'24--andthis is residentonly in the individual
and never in the group25.
Barker'sfirst argument is without force. Suppose it were true
that we could attribute moral responsibilityto a group only if we
also attribute such responsibility to its members. This would
"
See Ross M. Martin, 'Legal Personalityand the Trade Union', in Webb, op.cit.,and
the judgement of Denning LJ in Bonsorv Musicians'Union[1956] A.C. 104.
3Barker, op. cit., p. lxxv.
24 ibid., p. lxii.
25 ibid., p. lxxiv.
248
I-ROGER
SCRUTON
give grounds for denying corporate liability only if the two
responsibilitieswere exactly the same, so that the firstattribution
became redundant. But they need not be the same, either in
content or in degree. Groups can commit crimes which lie
beyond the capacity of any individual; they plan and encompass
actions which no single human being could undertake. Thus,
while it is true that the evil brought about by the National
Socialist Party of Germany inculpates at least some of its
members, and would not have been possible without their own
evil intentions, these individuals are not, and could not be,
blamed for all that the Nazi Party did. Some organizationsCommunist Parties, for instance-have committed crimes
which defy the human imagination, using individuals who
intended only to act for the good. While there is a temptation to
attribute these crimes to individuals-to Lenin, Stalin, Mao or
Pol Pot-this shows an exaggerated estimate of the individual
capacity for evil. Individuals are certainly inculpated in the
murder of theJews, the kulaks,and the Chinese and Cambodian
'bourgeoisie'. But no individual is guilty of the full extent of
genocide that should be laid at the door of the Nazi and
Communist Parties-not even Hitler or Stalin. Nor does
membership of those evil institutions automatically confer the
responsibility which lies on the group personality as a whole.
Barker'srefusal to attribute this responsibility to the collective
has a commendable cause: namely, he wished to close the
channel of easy excuses,to forbidthe defencewhich says'it was not
I who did it, but the Party'. But it blinds him to a real moral evil
for which he can propose no remedy: namely, that there are
groups which ought not to exist-groups like the Nazi and
Communist Parties, only the first of which has confronted its
rightful destiny, in sufferingjudicial execution.
Barker'ssecond argument is more interesting,since it suggests
a metaphysical, rather than a moral, objection to the idea of
corporate personality. It is undeniable that corporate persons
lack subjective awareness, and are 'subjects' only in the
technical sense of French and German law. It is true that they
may have (and lack) self-knowledge:a corporationcan deliberate
in the first person plural, asking itself what we reallywant,
believe or stand for. And the overcoming of self-deception may
be as important in corporate life as in the life of individuals. But
CORPORATE PERSONS
249
self-knowledge must be distinguished from the 'self-awareness'
of the Kantian subject: the ' "I think" which accompanies all
my perceptions'. I have immediate, incorrigible and selfintimating awareness of my present thoughts and sensations;
consequently, I am presented with a 'subjective realm',
concerning which I can make no distinction between how things
seem and how things are. There is no such subjective realm in
the life of corporations. Their mental processes are purely
as much the subject-matterof doubt and speculation in
objective:
the first person plural, as in the third-person view of others. In
this sense, there is no distinctive 'first-personview' on the affairs
of corporations, nor is there such a thing (in Thomas Nagel's
phrase) as 'what it is like' to be a church or a firm.
However, it is not clear what follows from that. It is certainly
possible for corporations to act freely and independently. And
while individuals are always involved in their acts, and provide
the vehicle for their projection and accomplishment, the acts of
corporations are not necessarily identical with the acts of
individuals, either in themselvesor in their moral consequences.
A company can commit a crime of which no individual is
guilty-even, it seems, the crime of manslaughter26.It can
confer benefits for which no individual can claim credit, and
harms for which no individual need be blamed. Why should its
lack of self-awarenessimpede our natural tendency to transfer
our moral attitudes towards it, and to summon it forjudgement
in the tribunal of personal life?
IV
Natural and Corporate
Persons.Three properties of the 'natural'
person tend to be singled out as essential--in the sensethat, were
he to lose one of them, he would thereby cease to be. First is his
unity and duration as an animal. The 'natural' person is a
member of a natural kind, obedient to laws of nature which lie
outside the scope of his will, and which confer on him a life of his
own. Secondly, he is a rational agent-a particular kind of
'intentional system', which receives and stores information,
" See the
argument of StableJ. in R. v I.C.R. HaulageLtd.[1944] K.B. 551, and of Lord
Caldecote CJ, in DPP v Kent and Sussex Contractors
[1944] K.B. 146. See also the
illuminating discussion in French, op. cit., chapters 13 and 14.
250
I-ROGER
SCRUTON
forms plans for the future, and acts upon them. As a rational
agent he is thought to have a 'will of his own', and to exhibit a
certain kind of continuity through time. Some philosophers go
so far as to suggest that it is this continuity (ratherthan identity)
which really matters to our 'personal survival'. Thirdly, the
natural person is self-aware. He identifies himself in the first
person, and attributes to himself mental states, and a 'point of
view', from a position of unique epistemological advantage.
This is the most mysterious of the three features. Kant argued
that the subject will not appear in any list of the objects of
experience, and will therefore be absent from a description of
the objective world27.It is impossible to say what it is that I
know, in knowing simply that I exist.
Puzzles about personal identity arise because philosophers
suppose that the three features mark out three ways of
natural persons. I am this animal, whose identity
individuating
time
resides in its uninterruptedlife; I am this rational
through
whose
agent,
identity through time is determined (on some
a
theories) by continuity of beliefs, reasonings, memories and
projects;I am this self, whose identity through time is, in Kant's
idiom, 'original', presupposedin my awareness,and determined
by nothing knowable. If the 'I am' in those three statements is
the sign of identity, then we face a paradox. For where is the
necessary connection between the human animal and the
rational agent, or between either and the 'self'? This rational
agent, and this self-awareness,we feel, could have inhabited
quite another body. But ifI am this body and I am this agent, the
two are identical, and identities are never contingent.
Such puzzles may be illusory. For it is a huge and
unwarrantedassumption that the 'I am' in the three statements
referredto is a sign of identity. Moreover the belief in the 'self
may be no more than the shadow cast by self-referring
language2".All the same, it is worth pointing out that these
puzzles, which put the concept of the natural person in constant
question, leave that of the corporate person untouched. At most
"7See the argument of the 'Paralogisms' in the second edition of the Critiqueof Pure
Reason.
2 Recent versions of the argument are to be found in S. Shoemaker, 'Self-Reference
and Self-Awareness',Journalof Philosophy,lxv, 1968, 555-67; and Gareth Evans, The
Varietiesof Reference,
Oxford, Clarendon Press, 1982, ch. 7.
CORPORATE PERSONS
251
they show the corporatepersonto be composedof metaphysically
problematic parts: but if you divide things finely enough,
everything is composed of problematic parts. As we have
already seen, there is no corporate self-awareness,and therefore
no 'self-identity' to trouble the third-person identity of corporations. Moreover, there is no clash-not even an apparent
clash-between natural and personal identity, since the corporation is not a natural kind.
This point has not always been appreciated. In an attempt to
approximate corporate persons to their natural cousins, Gierke
argued for the 'organic' nature of the Genossenschaft,
claiming
that it has a life, and a life-process,just as you and I. Its moral
personality consistsin this life, which is the thing that we ought
to safeguard through the law of corporations. The idea is
repeated forcefully by Figgis:
It is, in a word, a real life and personality which those
bodies are forced to claim, which we believe that they
possessby the nature of the case, and not by the arbitrary
grant of the sovereign. To deny this real life is to be false to
the factsof social existence, and is of the same nature as that
denial of human personality which we call slavery, and is
always in its nature unjust and tyrannical9.
Hauriou objected to this way of arguing, as giving a wrong
conception of what he called the 'individuality' of corporations.
They have, he said, the individuality of institutions, not that of
organisms"s.The intuitive distinction here is not easy to render
in precise terms. But it casts interesting light on the contrast
between the natural and the corporate person. Institutions are
characterisedby proceduresand roleswhich exist independently
of those who make use of them; they have a longevity conferred
by the principle of succession to office, and this longevity is
something which, in the nature of things, is not shared by an
organism. Not every institution has personality, Hauriou
claimed, although every institution has some measure of
autonomy. 'Individual autonomy' corresponds to Spinoza's
9 Figgis, op. cit., p. 42: the grammatical oddity of the second sentence adds to, more
than it detracts from, Figgis's natural vigour of style.
6th edition, Paris, Librairie Sirey,
3 Maurice Hauriou, Pricis de droitadministratif,
1907.
252
I-ROGER SCRUTON
conatus:organisms have it, and so do institutions; stones,
however, do not. It constitutes 'l'itat des chosesimmidiatement
nicessairepour l'acquisitionde la personnalitie"31.
Personality exists,
according to Hauriou, only where there is a corporate will: i.e.
only where decisionsare takenand responsibilitiesassumed,which
are not the decisionsor responsibilitiesof any singlehuman being.
Hauriou thereforemakesa distinctionbetweenthoseinstitutions
which have no personality and which exist in the realm of things,
and those which have personality, and which are subjects.(This
word, taken from legal parlance, should not be understood in
the sense of Kant or Hegel.) Hauriou's way of drawing this
distinction-in terms of the forcesacting on and maintaining an
institution-is highly questionable; the distinction, however, is
not, and I return to it below.
Hauriou's suggestion shows why there is no conflict between
the 'individuality' of institutions and their nature as persons.
Those features which confer personality-the decision-making
process, and the channels of accountability-also establish the
identity of the institution. These are institutional facts, and also
constitutive of the institution which displays them. The usual
paradoxes of personal identity-which arise from a tension
between the first and third-person perspectives, and a further
tension (real or imagined) within the third-person perspective,
between the personal and animal natures of the embodied
agent-do not and cannot arise.
Of course, there can be puzzle-casesabout corporate identity.
Is the University of Oxford the same person now as it was in
Wycliffe's day? Is Routledge and Kegan Paul the same person
since its takeover by Associated Books?And such questionsmay
present real moral and spiritual difficulties: consider the
question, 'Which is the true Church?'asked, for example, at the
time of the Council of Constance. Nevertheless, these difficulties
stem from the concept of identity through time, and not from
any metaphysical insecurity in the idea of the corporate person.
They are not to be confused with those difficultiesabout human
personality, which arise from the supposition that questions
about personal identity are settled in two (perhaps three)
independent ways.
3'
ibid., p. 34.
CORPORATEPERSONS
253
We ought not, then, to deny the personality of institutions,
merely because they do not possess those features which make
the concept of the 'naturalperson'so inherentlyproblematic.On
the contrary. It is precisely by studying the case of corporate
personality, that we see how to understand the human person.
The human being is, first and foremost, an animal. He is
'naturally' a person, only in that he acquirespersonality, in the
circumstances which cause him to flourish. In this sense
corporationsare also naturalpersons.By flourishingas institutions
(i.e. according to their nature) they acquire what we acquire, as
we flourish in conjunction with our kind.
V
This is not to say that
NaturalandCorporate
PersonalityCompared.
natural and corporate persons are comparable in every respect.
I have alreadymentionedsomeimportantsimilarities,concerning
the agency, rights and liabilities of corporations. In addition,
corporations may be the objects of inter-personal attitudes: of
resentment, anger and gratitude-even of love and hate. We
can have responsibilitiestowards institutions, and they towards
us, which are not just duties in law.
At the same time there are inter-personal attitudes which
cannot have corporationsas their (intentional) objects:namely,
all those attitudes which depend upon the thought that their
object is a living thing, or that it has first-person awareness.
Sexual desire and erotic love, for example, which are directed
towards the living embodiment of the first-personperspective,
require the two elements of human existence which no
corporation can display. Furthermore,and for the same reason,
there are attitudes which cannot be attributed to corporations.
A corporation cannot possessmental states which must be 'felt'
or 'experienced' if they are to be possessedat all. Such mental
states require a unique 'subject of consciousness',and even ifwe
do, on occasion, attribute them to animals, this will not license
their attribution to things which have no sensuous experience,
and no 'point of view'. If a corporation can love its members,
therefore, it is not with the felt love of a mother for her child, but
only with the abstract love to which we are commanded.
We should notice, however, that there are mental states
which need not be, and which in some sense cannot be, felt:
254
I-ROGER
SCRUTON
beliefs, certain kinds of deliberative desire, intentions, the
recognition of duties, and the dispositions which govern our
response to them. All those, I suggest, lie within the mental
repertoire of corporations. We can even attribute feelings of a
kind to corporations, such as pride, remorse, guilt and other
moral emotions. For such feelings approximate to policies, and
are sincere only when their policies prevail. The penitence of
Leontes, in A Winter'sTale, is constituted by his expiation,
rather than his pain. Expiation is the sign of true remorse,and
can be undertakenas well by a corporation as by an individual.
The moral life is to a great extent composed of such emotions,
which all have their corporateanalogues. Indeed, they owe their
genesis to association: shame and pride arise in the human
heart only in circumstanceswhich generate the pride and shame
of corporations.
VI
Priorities.Are we to conclude, then, that corporations
Ontological
are real moral persons,with a claim to considerationcomparable
to the claim of the human soul?One argument has been held to
count against that over-simple conclusion: namely, that individual persons are 'ontologically prior' to corporations. The
argument is variously expressed, often using vague terms of the
'nothing over and above' variety, sometimesleaning on the even
vaguer 'methodological individualism' of Popper and his
followers. The thesis of the 'ontological priority' of the
individual seems to involve two claims: First, if corporations
have moral personality,it is only by virtueof the moralpersonality
of their members; secondly, there could be individual persons
without corporations,but no corporationswithoutthe individuals
which act forthem. Togetherthe claimsformthe plausibleremainder of positivistand reductionisttheoriesof society,and forthe rest
of this paper I shallexperimentwith an interesting-if not entirely
decisive-rejoinder to them. I supposethat the true begetterof this
rejoinderwas Hegel"; but he was anticipated by Burke,and also
by Rousseau and Fichte. Whatever the virtues of those writers,
none of them had that instinct for valid argument which would
recommend them to an analytical philosopher, and everything
of Spirit.
of Rightand The Phenomenology
32In The Philosophy
CORPORATE PERSONS
255
they said must be rewritten, in a language which they would
have abhorred.
The suggestion is this: we are natural personsonly in that we
are disposed by nature to become
persons,and we become persons
only by creating personalinstitutionsand the ties of membership
which join us to them. Personality is only embryonic in that
'immediate' ('subjective') relation to the world which is the
initial stance of consciousness, and is only gradually wrested
from the world, in a processof interactionwith others. To gain a
moral personality and the rights and duties that go with it, is
automatically to acquire what Bradley was to call a 'station' in
the social world33.The various forms of fellowship-from the
'immediate' union of the family, through the 'mediated' ties of
contract, to the fully 'realized' association in civil society and
state-are the instruments of our own self-development, and
without them we could not 'become what we truly are'.
Moreover, it is by virtue of the moral personality of
associations that the individual personality emerges (and vice
versa): the corporations exert a kind of tutelage over their
members, demanding the recognition of objective rights and
duties. The individual owessomething to family, community
and membership, and it is through recognizing this that he
acquires the conception of an objective
obligation-an obligation
that arises independently of any consent to it, and which
thereforelies in the nature of things, outside the individual will.
Hence the importance of associations-such as the family and
the church-which stand in non-contractual relations to their
members, and whose moral reality cannot be captured in terms
of an agreement. Recent discussions,which take the firm as their
principal example, fail to engage with the Hegelian argument,
and indeed, beg the most important question, in taking the
freely contracting individual as their starting point. Such an
individual comes into existence, the Hegelians argue, already
marked by the ties of membership,and without those ties, which
compel him to recognize and to honour the personality of
institutions, he would not possessthe autonomy that is necessary
for any contractual undertaking.
33F. H. Bradley, 'My Station and its Duties', in EthicalStudies,2nd edition, Oxford,
Oxford University Press, 1927.
256
I-ROGER SCRUTON
By way of clarifyingthe argument, I shall consider what I take
to be the three most important objections to it:
(1) Even if corporations are empiricallynecessary for the
development of moral personality in the individual, this does
not refute the claim that individuals are ontologically prior in
the sense intended. Human individuals are ontologically prior
to corporations if and only if it is logically possible for the
individual to exist without the corporation, and not for the
corporation to exist without the individual. (On one of the
readings I earlier gave of the phrase 'ontologically prior':some
may prefer to substitute the other reading.)
(2) The argument does not tell us with any clarity what the
experience of membership is supposed to confer, how it is
of the
necessaryto individual personality,and why thepersonality
in
it.
a
group plays part bestowing
(3) Even if the associations which form the individual's
personality are non-contractual, this is an historical accident.
Indeed, there is a tendency for institutions gradually to revise
themselves in conformity with contractual principles, so as to be
reconstituted as 'relations between consenting adults', rather
than objective formsof membership. (This is the real meaning of
changes in the law of marriage. In a sense, you could say that the
main spiritual task of Enlightenment liberalism has been to rid
the world of membership, and to put contract in its place.)
I envisage the Hegelian replying in the following terms to
those three considerations:
To the first point he might say that ontological priority,
construed in terms of logical possibilities, is of no metaphysical
significance. It is logicallypossible for the parts of an organismthe cells-to persist without the organism, and not logically
possiblefor the organismto persistwithout its parts.Nevertheless
(a) the organism is a real existent in additionto its parts, and (b)
the parts owe their existence, not just empirically, but also
metaphysically, to their participation in the whole which
nurtures them. (It is the natureof a cell, to belong to a larger
organism.) Could not a similar relation obtain, between the
corporation and the individual (similar in theserespects,at least,
Hauriou's argument notwithstanding)?
CORPORATEPERSONS
257
To the second point, the Hegelian will reply (in opposition to
such thinkers as Kant and Rawls) that we cannot isolate the
individual in thought from all his non-contractual obligations,
and from every group which engenders them, and still suppose
that he is the fully autonomous rational agent envisaged by the
liberal imagination, able to decide, to repent, and to bind
himself, and to look on the world with the distinctive
countenance of personality. Agency is the greatestirrationality,
until tempered and guided by a sense of value. It is value
which justifies the ends of conduct, and which thereforejustifies
the means. But whence comes the idea of value? Only, the
Hegelian suggests, through that sense of transcendent answerability-of being 'called to account'-which is the gift of
association. The non-contractual obligation inducts us to the
moral life, and grants us therewith the goals of rational choice.
To the third point the Hegelian may give a more empirical
answer. It is, he might say, a plain fact of modern history that the
dissolution of transcendent bonds in the ever-flowing stream of
contract has eroded also the sense of obligation. Contracts are
more easily broken, to the extent that they are seen only as
contracts; and honesty is on the decline precisely in those
situations (the free untrammelled market in human relations)
where it becomes the sole remaining prop of human society.
Consider marriage. Even if this is, or has become, a contract, it is
at least a contract of fidelity. Yet have people become more, or
less faithful to their spouses,since learning to see the duty to be so
as arising by agreement, and not by virtue of the 'sacrament'
itself?The answeris obvious.(For 'sacrament'read 'membership':
the sense of God's participation in our social life is the best
intuitive way available to us, of understandingand accepting its
non-contractual basis.) The least that can be said is that
something vital is missing from the natural person who is
without the experience of membership--something necessaryto
his perfection. Lacking it, your attitude to the world and to
others is one of 'diminished responsibility',while your personal
relations become defeasible, rescindable, and renegotiable in
the interests of gain.
VII
Full Corporate
Personality.The reply is by no means conclusive,
258
I-ROGER
SCRUTON
and is particularlyweak in its second point: the attempt to show
that corporate persons are somehow necessary to our moral
development. I therefore return to this point in the concluding
section, to see if anything more can be said by way of elaborating it. Before doing so, however, it will be useful to take
a fresh look at Hauriou's somewhat dustily presenteddistinction
between institutions with personality, and those which exist 'in
the realm of things'.
Not all associations are institutions, and not all institutions
are persons.Hauriou's suggestion that all corporate personsare
institutions offers a way of counting them (provided we have
some grasp of the identity-conditionsfor institutions). But it has
the consequence that many associations-including many that
are closest to us, like individual friendship-are not persons.
Moral personality is a matter of degree, and an institutionmight
gain or lose some of its personalattributesduring the courseof its
history. Thus there are institutions which make decisions, but
which recognize neither legal nor moral liability for their
'errors' (the Mafia, the Communist Party); there are those
which confess their faults and make amends for them, but which
are deprived of all law-making capacity and depend upon
others to set limits to their conduct (the firm); there are those
which impose their will on their members, and even conscript
those members regardless of their own desires, but which
nevertheless acknowledge personal responsibility for their
welfare (armies):there are those which, while possessingmoral
personality, endeavour to escape the legal burden of it, and
which constitute themselves accordingly (trade unions). I shall
therefore draw a contrast between the most fully personal
institution conceivable, and a 'thing'-institution, and try to
show what happens to the social world, when 'thing'-institutions
displace corporate persons in its regulation.
Consider an institution with the following features:
1. It is a voluntary association, which has no penalties for those
who withdraw from it.
2. The primary benefit that it offersits members is the benefit of
membership, and all that is intrinsically connected with
membership.
3. It has no contract with its members, and enshrines no
CORPORATEPERSONS
259
contract between them. Its assets are its own, and held in trust
for no one.
4. It is a deliberative body, and its deliberations are conciliar,
proceeding by rational discussion among its members. (The
deliberative procedure may or may not be democratic; what is
important for personality is that it be constitutional-i.e. that
there be a means to determine whether it has been correctly
followed, and a remedy for irregularities.)
5. It is authoritative, so that its decisions may be binding on its
members. (This authority may be recognized, and made an
object of reverence and enjoyment, through custom and
ceremony.)
6. It is a law-making body, exerting jurisdiction over its
members. The process of adjudication conforms to natural
justice (as understood in English Administrative Law): the
judge is independent, there is a right of hearing, laws are applied
consistently and a right of appeal exists for irregularities.
7. It is open and answerable in all its workings.Records are kept
of decisions, which can be publicly criticized, and publicly
justified. The corporationregardsitself as bound by its own law
(if it has one) and obliged to make amends for its transgression.
8. It is obedient to the moral law and remorseful for its
transgressions.Sins committed by the corporation are atoned
for, once acknowledged, and accomplices are held up to shame.
9. It is obedient to the positive law of the state within which it
resides.
10. It is accorded legal personality or the equivalent, so as to
conduct its affairsas an independent legal entity, subject to due
process.
It should be obvious that the least important of those features,
from the point of view of moral personality, is the last: the
external recognition granted by the law. If the firstnine features
are present, then the tenth is simply what Gierke and Figgis say
it is: the recognition by the sovereignof an evident moral reality.
And if this recognition is withheld-as from the Catholic
Church in the Ukraine, or from the trade union Solidarity in
Poland, or from the Jazz Section of the Musicians' Union in
Czechoslovakia (to take three notorious recent examples)-an
injustice is done. To suppose that feature 10 is capable in itselfof
creating any or all of features 1 to 9 is to have but a rudimentary
260
I-ROGER SCRUTON
understanding of the forms of social life. We can also see why
Gierke and Figgis were wary of the view that legal personality
must be bestowed by the state if it is to exist at all: for this puts
in the hands of the State the power to destroy associations. It is
surely a marvellous device of English law that it has been able,
through the concept of trust, to enable moral persons to create
their own legal identity, and to claim the recognition which is
due to them, while asking permission of no one besides their
members. It is this, rather than any actual or implied Bill of
Rights, that has been the greatest source of English liberty. For
the freedom to associate, and to protect our associations from
their natural predator, the sovereign, is the most precious
freedom that we have.
It should also be obvious that the institution that I have
described approximates closely to the Church, as this was
understood by the canonists-or at least the Church in its
conciliar interpretation, the church of Nicholas ofCusa andJan
Hus. All that it lacks (although for the believer this is
everything) is the gift of the Holy Spirit, the gift which makes it
an end in itself in the fullest sense. Clubs, societies and
usually make no such claim for themselves-and
Genossenschaften
if they are ends in themselves, it is only in the lesspotent sense of
being means to nothing else. There are also corporationswhich,
while possessing sufficiently many of the listed features to be
accorded moral personality, do not possessthe full personality of
the institution that I have envisaged. Firms, for example, possess
features 1, 4, 5 (as a rule), 7, 8, 9 and 10 (as a rule). And by
comparing the various partial realizationsof the above ideal, we
should come to an understandingof the relative importance, for
the idea of personality, of the features I have mentioned, and of
the separate contribution that they make to the richnessof social
life.
VIII
The War Against CorporatePersons. Hostility to corporate
persons-as sources of authority, bestowers of value, and
supplicants to power-has been, according to Gierke, a regular
concomitant of the political philosophies based in Natural Law.
Natural-law theory tends to employ an abstract (as we should
say Kantian, or Rawlsian) conception of the individual agent,
CORPORATE PERSONS
261
who is presented as the sole possessorof rights and duties. The
individual derives these rights and duties from his faculty of
choice, and with the benefit of no institution. The institutions
which surround him owe their legitimacy to his contract to
maintain them, and are ultimately subservientto the State-the
supreme institution in which the sum of human contracts is
inscribed and given personality,like the runes on Wotan's spear.
The State tends to be seen as the only permissible corporate
person; all others either derive from it, or else remain suspect,
usurpers of its power and threats to the rights of individuals.
Thus, according to Gierke:
In the age of Enlightenment, the prestige of historical law
increasingly paled before the splendour of the new ideal
law, and the more it paled, the easier it was to advance
from denying that corporations had a sanction in Natural
Law to questioning whether they existed at all. Naturallaw theory of this extreme order became a powerful ally of
the practical policieswhich were directed to the destruction
of the corporative system of Estates inherited from the
Middle Ages. There were now two forces in the field--the
State, with its passion for omnipotence: the Individual,
with his desire for liberation4.
Such a view, defended by Althusius, was adopted also by
Hobbes, both in De civeand in Leviathan.Perhaps its earliest
transfer into practice came with the French Revolutionaries
who, on August 18th 1792, decreed that 'a state that is truly free
ought not to sufferwithin its bosom any corporation, not even
such as, being dedicated to public instruction,have merited well
of the patrie'35.Writing before the bolsheviks came to power,
Auguste Cochin gave a trenchant analysis of the French
Revolution, studyingthe systemof 'parallelstructures'established
in the Breton countryside"6.He described the transformationas
involving a move away from personal government, (in which
civil powers are also persons, sometimes individual, usually
34Gierke, ed. Barker, op. cit., p. 165.
35 uoted in Maitland, 'Moral Personality and Legal Personality', in Collected
Papers,
op. cit., vol. III, p. 312.
36Auguste Cochin. Les Sociitis de pensie et la Revolutionen Bretagne,Paris, Honore
Champion, 2 vols, 1925.
262
I-ROGER
SCRUTON
corporate), towards a new kind of 'impersonal government',
which would be a true 'administration of things'. As Cochin
shows, the exercise of power, once 'de-personalized', becomes
unanswerable:decisions are taken for which no person is liable,
and neither the rights nor the duties of associationsare defined.
Associations are regarded with suspicion, unless and until
controlled by the central 'machine'; and all, in the end, are
subverted or destroyed.
The process of de-personalization was perfected by Lenin,
through a brilliant invention which we might call, following
Russian usage, the 'Potemkin institution'. All associationswere
to be infiltrated by the Party and made subservient to it. They
could retain no autonomy, and any attempt to do so was visited
with the harshest punishment. Particularly important were
the churches:the paradigm Genossenschiften,
whose personalityis
founded in a transcendent bond of membership. The Russian
Orthodox Church was forced to become the servant of the
Party:those churcheswhich were not infiltratedwere suppressed,
and all corporate action by religious bodies other than the act of
worship was forbidden3".Other institutionswhich had acquired
moral personality-universities, schools, clubs and societieswere also either destroyed or turned into Potemkin replicas,
in which the semblance of autonomy was the thinnest mask for
external control. Private charities were expropriated and then
suppressed, and in place of the personal institutions of civil
society were created the thing-institutions of the communist
State: the komsomol,
the unions of workers and artists, and the
'agitation centres' which were to serve as churches of the new
belief. No thing-institutionhad reality, other than that conferred
on it by the Party, which was to possessthe sum of institutional
autonomy, united beneath a single corporate command. Thus
was the Enlightenment vision of emancipation realized at last,
as men were freed from the bonds of membership which had
previously ensnared them, and conscripted to a purpose that
was not their own.
It was as much the pursuit of de-personalizationas the belief
in cranky economic theories that dictated the policies of
collectivisation and a centralised economy. The farm and the
" See
Timothy Ware, The OrthodoxChurch.
CORPORATEPERSONS
263
firm are also corporate persons; they have the capacity for
autonomous action and responsible choice. They can go
bankrupt, commit crimes, offer benefits and incur obligations.
Such facts threaten the Party's monopoly of associative power.
These institutions too, therefore, were forced to become
Potemkin replicas,to serveas masksfor decisionswhich were not
their own, and which frequently answered in no way to their
interests. Even those institutions whose reality derives from
contract were deprived of the moral personality that would
otherwise accrue to them, and made part of the great machine.
Thus was the government of men replacedby the administration
of things, as all persons,corporate and natural, were reduced to
things. Power was henceforth exercised in a spiritof calculation:
a purely instrumental view of association (as a means to the
transmissionof power-a 'transmissionbelt', in Lenin's phrase)
accompanied a purely instrumentalview of the individual (as a
means to his own replacement, by the New Socialist Man).
Neither men nor groupswere to be treated as ends in themselves,
but all were subject to a single imperative, which recognized no
limit to its actions, since it was without the principle of
answerability from which the sanctity of limits derives. The
'socialistlegality' of Stalin granted legal personalityto Potemkin
institutions: but it was a Potemkin personality, and no
individual could be sure of binding a corporate personeither by
law or by contract. The agent which dictated institutional
choices-the Party-possessed only defective personality, and
could not be sued. The greatest criminal, who was also the
greatest tortfeasor,could be brought before neither the criminal
nor the civil law.38
The process that I have described was not everywhere
successful. And even when most successful, it leaves one
corporate person standing triumphant amid the ruins of social
life: the Party itself. But it is a monstrous person, no longer
capable of moral conduct; a person which cannot take
responsibilityfor its actions, and which can confess to its faults
only as 'errors'imposed on it by misguided members, and never
as its own actions, for which repentance and atonement are due.
38 I have argued this point in more detail in 'Rechtsgeflihl
and the Rule of Law', in
J. C. Nyiri and B. Smith, eds., PracticalKnowledge,London, Croom Helm, 1988.
264
I-ROGER
SCRUTON
The moral personality of this all-encompassing Leviathan is
impaired: unable to view others as ends in themselves, it lacks
such a view of itself. It has set itselfoutside the moral realm, in a
place of pure calculation, blameless only because it denies the
possibilityof blame. Like its shortliveddisciple,the Nazi party, it
is a corporate psychopath, respected by none, and feared by all.
When Sir Ernest Barkervoiced the fearsof the decent liberal
Englishman, and criticized the incipient 'collectivism' of the
German idea of the corporation, he failed to understand that
personality requiresmutuality. The autonomous rational agent
exists in reciprocal relation to his kind, and is a person only to
the extent that he acknowledgesand defers to the personality of
others. The true corporate person is as much bound to respect
the autonomy of individuals as they are bound to respect the
autonomy of groups. A world of corporate personsis a world of
free association:it is the antithesisof collectivism, which imposes
a world of conscription, where all association is centrally
controlled, and all institutions are things. Collectivism involves
a sustained war, not on the individual as such, but on the person,
whether individual or corporate. The trouble with Hitler was
not that he listened to the voice which speaks through Fichte,
Hegel and Gierke, but that he listened to that other voice, which
sounds through Robespierre, Marx and Lenin, and which
promises to reduce the intricate moral fact of personality to the
single, seizable commodity of power.
IX
The HegelianRevisited.Something vital to the body politic is
destroyed, therefore, when associations are deprived of their
personality, reduced to things, and treated as the instrumentsof
power. But what does the individuallose by this process, and in
what way is his personality impaired by it? The Hegelian claim
was that individual personality requiresfor its fruition not only
association, but also a personal relation to the corporation
which is thereby formed. Does anything really entitle the
Hegelian to so strong a conclusion?
Certainly it is hard to lean, at this point, on the factsof history.
Even when the greatesteffortis made to eradicate associations",
39Some measure of the energy expended in this cause can be gained from the fact that
Janos Kadir, during his two years as Minister of the Interior following the Communist
CORPORATE PERSONS
265
the mark of corporate personality endures: people meet in
secret, establish 'black' institutions, rehearse the memory of
common life in ritual and story-telling, and perceive (thanks to
the residues of civil architecture) the personal face in churches,
villages and towns. Perhaps when Ceausescu's schemes are
accomplished, we shall have, in Romania, an example of a
society in which the experience of corporate personality has
been finally extinguished. But it is an unsatisfactoryargument
that requires us to wait for so melancholy an outcome. Nor is it
enough to point to the prevailing cynicism of those who live in
the world of thing-institutions-to their sense that nothing has
intrinsic value, or should be pursued for any other reason than
the profit. For this cynicism is widespread elsewhere, and is
attributable, at least in part, to currents of opinion that lie
outside the control even of the Communist Party.
The Hegelian needs to show an internalrelation(as he would
put it) between natural and corporate personality: to show, in
other words, that something essential to the first must be
obtained through the second. This essential thing has been
designated by many vague but pregnant names: civilisation,
culture, or (in Hegel) Bildung.I have glossed it so far in terms of
non-contractual obligation, which, I contend, is necessaryto the
full floweringof rationalagency--being invoked,paceGauthier40,
in any serious morality. But two difficultiespresent themselves,
which between them cause me to doubt that the Hegelian
argument, plausible though it is in many respects,can be carried
through. The first is that there are associationsfounded in noncontractual obligation, and which are also ends in themselves,
but which have no other features of corporate personality:love
and friendshipare the primeexamples.Why are thesenot sufficient
for the generation of the sense of non-contractual obligation,
and what is gained, in addition, through their personification
(say, in a family or a club)? Secondly, we lack a proof that the
individual must recognize
the personality of associationsif he is to
be improved by them. Is it not enough to bejoined in fellowship
coup d'&tatin 1948, was able to destroy15,000 associations,at a time when the population
of Hungary was about 8M. This heroic achievement notwithstanding, the courtsare still
working full time to dissolve new associationsand punish their members:the recent case
of the Fidesz group being particularly interesting to the student of communist legality.
40D. P. Gauthier, Moralsby Agreement.
266
I-ROGER
SCRUTON
with others, assigning rights and duties to yourself and them?
Let us return in thought, therefore, to the world of thinginstitutions,and try to discoverwhat the individual lacks in that
world. The primary thing that is missing, I believe, is the longtermview.No obligation enduresthere-not even the obligations
of love and friendship--beyond the lifetime of the individuals
who undertake them; nor does any obligation exist towards
those who are not present to reciprocate it. The unborn and the
dead are not only disenfranchised:they have lost all claim on the
living. Their claims can be acknowledged only if there are
personswho endure long enough to enter into personalrelation,
both with us, the living, and with them. The true public
spirit-the spirit from which civil society and all its benefits
derives-requires just such a projectionof our duties beyond the
grave. The care for future generations must be entrustedto
persons who will exist when they exist: and if there are no such
persons surroundingme, how can I have that care, except as a
helpless anxiety? I can enter into no personalobligation that will
bind me to past and future souls, nor can you. Only a corporate
person can enter such an obligation, and only through corporate
persons, therefore, can the relation to the unborn and the dead
be made articulate and binding. (Thus when, as in aristocracies,
this relation is made articulate through the family, the family
ceases to be the bond of presentlove, and becomes an institution,
with a personality distinct from those of its members.)
That this relation to the unborn and the dead is necessaryfor
the fulfilment of the rational agent is something that we should
not doubt. For it forms the premise of self-justification.The
individual is justified by the knowledge that he did right by
those who survivehim, whom he never knew, and who promised
him nothing; and equally by those who preceded him and
bequeathed to him unknowingly their store of trust. In the
broadest sense, then, the corporate person is necessary to the
ecologyof rational agency, and without it our aims will be as
truncatedas our lives. One might say of corporatepersonsgenerally what Joubert said of the old civil and religiousinstitutionsof
France: ce sont les cramponsqui unissentuneginerationd une autre.4
" I am
very grateful to the late Ian McFetridge and David Wiggins, whose comments
greatly helped me in preparing this paper.
CORPORATE PERSONS
Roger Scruton and John Finnis
II-John Finnis
PERSONS AND THEIR ASSOCIATIONS
It would be hard to take seriously an enquiry into the
personality of Scruton's 'corporations'-committees, firms,
churches, clubs, political parties, partnerships,universitiesand
schools, farms and (aristocratic) families, states and Mafias,
armies and trade unions-if one really considered individual
people so 'metaphysicallyinsecure'and 'inherentlyproblematic'
that we could 'see how to understandthe human person'only by
first studying 'the case of corporate personality'. Scruton
professes to find people less securely persons than their
associations, and grants if not concedes bad arguments for
doubting the unity, identity and wholeness of the rational
animals he misnames 'embodied agents'. But in the end it is
clear that for him, too, institutions and other associations are
worth calling personalprimarilybecause they enable individual
human people to pursuesharedpurposes,fruitfully,in association
with others who like them have had or will have lifetimeswhich
last, in Scruton'swords, from birth to grave. The thus persisting
and organic unity, identity and wholeness of each of these
people provides us (for all its irreducible and puzzling
complexity) with the paradigm of personhood.1
I
Because I am committed to writing this paper in time for
printing, I am composing it straight onto a word processor;
though I am feeling mildly rheumatic from a cold, I am
1
Strawson's arguments for the primitivenessof the concept of 'person', in Individuals:
An Essayin Descriptive
Metaphysics(Methuen, 1959), pp. 87-116, seem successfulbut, as
Germain Grisez argues, BeyondtheNew Theism(U. Notre Dame P., 1975), p. 348, fail to
distinguish between people and other sentient organisms;Grisez remedies the failure of
Strawson's argumentation to respond to the self/body, as distinct from mind/body,
problem: ibid., pp. 347-53.
268
II--JOHN FINNIS
exercising my fingers in tapping out this sentence, and am
hoping that its multiple self-referenceswill help convey certain
views which I formed years ago and am still sure of after some
days reflecting on Scruton's paper.
Scruton speaks as if it were a 'huge and unwarranted
assumption' that the 'I am' which occurs six times in the
preceding sentence is a sign of the lasting and bodily identity of
the one animal and rational substance (I myself) who moves,
feels, cogitates,judges, chooses, makes commitments, and moves
material objects in order to carry out his choice, fulfil his
commitment, communicate his meaning and report his feelings
-and who equally is reflexivesubject, not only experiencing his
being and acting in all these ways but also knowing himselfboth
as object and subject of that experiencing, being and doing.
Now, certainly, the use of 'I am' is neither necessary nor
sufficient to provide even a dialectical (in Aristotle's sense)
'proof' of that substantial identity. But I know no warrant for
Scruton's assumption that neither this feature, nor the fact that
that same sentence can be translated into many languages
without significant loss of meaning, is a sign of such identity.2
And, on the contrary, neither the experience of bodily (animal),
rational, responsible and self-consciousagency, nor the critical
reflective judgement that such agency instantiates the several
irreducible aspects of the personal identity of one of a natural
kind of rational animal,3 is an assumption.
This personal identity, which one both experiences and pace
Kant and Scruton can critically affirmto be exemplified in one's
responsible acting, is paradigmatic. If this is illusory, or even
'metaphysically problematic' (in the sense of open to reasonable
doubt), we lack any basis upon which to raise any interesting
question about whether or not associations or groups of us are
Anscombe and
2No such warrant is afforded by the various arguments ofVendler,
Strawson discussed in Mackie, 'The Transcendental "I" ', in van Straaten, Philosophical
Subjects(OUP, 1980) pp. 48-61, on which see Strawson, ibid., pp. 266-71. The
'transparency' of the first-personsingular has its importance, but not as a warrant for
Scruton's assumption:Finnis, Fundamentals
of Ethics(OUP, 1983) pp. 3, 23, 70-74, 114,
117, 141, 143.
to read the
I
3Which kind? Well, that which includes at least all those whom expect
first sentence of this section with sympathy. I need not say more, since Scruton accepts
that the natural human person belongs to a natural kind.
CORPORATE PERSONS
269
(identifiable as) (corporate)persons.' Indeed, and as one would
expect, Scruton's mode of analysing and arguing for the
personality of groups, throughout his paper, belies his claim that
corporate personality is epistemologically prior to, or in some
similar way privileged in comparison with, the personhood of
people.
II
The nature (explanatory account) of any active reality is best
understood by identifying its capacities (potentialities), and
these by attending to its activities.5 People's personal reality is
fully manifested only in their chosen actions. Where one's action
is fully voluntary, one's 'prior'deliberation and choice can often
be clearly identified and distinguishedfrom the action itselfonly
with some artificiality and for analytical convenience. Afortiori,
a community's reality, its 'personal'character,is fullymanifested
and instantiated only by its corporate, collaborative or cooperative action.6
In line with his tolerance of Kant's and other dualistic
conceptions of personal reality, Scruton's case for attributing
personality to certain human associations seems to give
explanatory primacy to the fact that these associations decide
matters 'as a result of common deliberation' (sec. I), 'proceeding by rational discussion among its members' (sec.
VII). And he frowns on social-choice theory's incapacity, as he
thinks, to mark the distinction between decision by collective
deliberation and the emergence of e.g. prices as the side-effectof
'choices which do not intend them'. But, in thus giving primacy
4Equally, if one holds with Scruton that the discovery that one is a 'mere intelligent
machine' should have 'no bearing whatever' on one's judgments about one's 'moral
personality', one lacks any basis for raising interesting questions about personal
responsibility, let alone about the distinction which Scruton wishes to make much of,
between thing-institutionsand personal-institutions.
5Cf. Aristotle, de. AnimaII, 4: 415a 16-21.
as
Barker'left Genossenschaft
is 'a co-operative'.
6The primary meaning of Genossenschaft
"fellowship", following good authority', but speaking propriavoceidentified it as a
'system of fellowship', paradigmatically 'the company of brothers, linked by the right
hand of fellowship, and knit together by a spirit of fraternity,who pursued the common
interest of their group (whether based on profession, or occupation, or the simple
foundation of voluntary association) and vindicated its common honour with a common
ardour': Introduction to Gierke, Natural Law and the Theoryof Society1500 to 1800
(Cambridge UP [1934, 1950), xc, Iviii.
270
II-JOHN
FINNIS
to deliberation and decision in the account of corporations, he
seems to overlook the fact that corporate decisions are often not
unlike a market's pricing, in bearing only an accidental relation
to any common deliberation and/or rational discussionwhich
preceded them.
For:. The 'social-choice' theory of voting demonstrates, for
example, the easy possibilityof cycles (intransitivity):a majority
preferA to B, a majority preferB to C,and a majority preferCto
A-so that the outcome depends not so much upon any common
deliberations as on accidents of process(e.g. which vote is taken
first). (The possibility of cycles is independent of, but their
probability is much enhanced by, tactical voting.) So, even
healthy groups often have to act collectively despite widespread
knowledge or belief that the collective decision to be put into
effect is only the accidental side-effect of other decisions,
collective and individual, and has only the appearance of
analogy with the emergence of an individual's choice of action
from his own deliberation.7In these cases, group action is undertaken in order to carry out a decision which has emerged from
the 'black box' (invisible hand?) of formally correct processas a
kind of side-effectof any 'common deliberation', an effectwhich
perhapsfew of thosedeliberatingabout the decision,and none involved in executing it, either desiredor even reluctantlyintended.
The classic ground for denying that communities have a
substantial identity is that their individual members, though
parts of that whole which we rightly identify as a community, do
and sufferthings which are in no sense actions or experiencesor
This seems right, though
events in the life of the community.8
circular (and in need-and capable only-of dialectical ex7Another consequence, also not of the first importance, of Scruton's emphasis on
decision as primary mark of personality is the prominence he gives to committees and
their supposed personality, at the expense of the corporation within which, and on
behalf of which, typically, a committee deliberates and decides. Committees, as their
name implies, are characteristically commissioned to investigate and/or deliberate
and/or decide on behalf of the body which committed this role to them. Scruton'selision
of the two appears in his opening pages and recurs when listing the features of fully
personal corporations:the list begins with three and ends with three or four featuresof
the whole association ('It is voluntary', etc.), but in the middle switcheswithout notice to
features of a governing element ('It is deliberative/authoritative/a law-making body').
8See e.g. Aquinas, in Eth., intro., para. 5. This, not any notion that contract is
prerequisite to group identity, is the reason why political theory in its central form is
wont to reject the claim that groups are personsor bodies, and to treat such assertionsas
CORPORATE PERSONS
271
plication and defence) in the way that definitions of primitive
terms must be. In any case, Scruton I think concedes this denial,
when he himself denies that groups are [members of] 'natural
kinds', a matter he assimilates with animal life, unity and
duration.'
The consequenceto be drawn fromthe positionthus conceded
is this. A human community's reality is no more and no less than
the reality of group action, together with such acts and
dispositions to act of the group's members as manifest their
readinessto participate in, and emotional responsivenessto, the
group's action, for the sake of the good(s) which give(s) point to
that action."' That is to say: The reality of a community is the
reality of an order of human, truly personal acts, an order
brought into being and maintained by the choices (and
dispositions to choose, and responses to choices) of persons.
III
Being constituted by, and having no existence independently of,
the many individual acts of those people who participate in that
action, the action and other reality of a community is properly
understood only in that critical discourse which attends
systematicallyto the 'existential',i.e. to the intelligibilitieswhich
originate in personal choices to act. That critical discoursewe
call 'moral'." And in a moral analysis of human affairs, a
community's action is not reducible to the whole collection of
those individuals' acts or any subset of them, nor even to that
justified only if taken as metaphorical Aquinas, SummaTheologiaeIII, q.8 a. 1 ad 2 ('in
metaphoribus locutionibus ... similitudo ... non ... rei veritas'). Any Tridentine
referenceto the compago
spiritualiswill have nothing to do with theoriesthat the Church is
formed by contract and everything to do with the Bible; for in the Vulgate, compago
and
its cognates signify, never a compact (agreement), but always a joint, frame or bodily
structure or structuring (see Daniel 5.6, 10.16;Job 10.11; Ecclesiasticus11.5; Hebrews
in Ephesians4.16 means, as Knox appropriatelytranslates,that the
4.12; thus compactum
social body of the Church is 'organized [by the head, Christ]').
9The tradition uses 'natural' differently and says that some groups, such as the
nuclear family and the ammmnitas
imperfectlyexemplifiedby the modernstate, are
perfecta
natural kinds, though still only 'accidental' rather than substantial wholes.
'oFor, if natures are understood by understanding capacities, and capacities by
understanding their actuations, those actions are understood by knowing their objects
(point): de Animaloc. cit. supra n.5.
" Hence, too, the justice of the old view that if one must speak of the personality of
groups, one had better call it 'moral personality'-as Scruton comes round to doing.
272
II-JOHN
FINNIS
whole collection together with the common plan (so far as there
is one). The action of the group itself-the group's action
itself-can, as Scruton says, be rightly assessed as upright or
immoral.
Sharing Scruton'sjudgementsabout certain particularacts of
genocide, I shall discussanother (proposed)act of genocide. I do
so in order to clarify the reasons for sharing Scruton's general
claim: that such acts should indeed be ascribed to the group, as
subject, though without prejudice to the moral responsibilityof
those people who participate in the social act.
Maintaining a nuclear deterrent is rightly said to be the act of
the nation-state which does so: the act of credibly threatening to
impose retaliatory nuclear destruction on some potential
adversarynation-state. Not all membersof the groupparticipate
in that act, and some have no moral responsibilityfor it. Those
who have no moral responsibility for it could never be rightly
punished for it; but as members they might be rightly called
upon to contribute to compensating victims of the group's
misdeeds."2 As for those who participate in the social act of
maintaining the deterrent, they do so by choosing to do
something to further this act of the group, e.g. to authorise its
funding, or to assist in the construction of weapons, or the
elaboration of plans to use them, or the maintenance of systems
for guiding or delivering them.
Now: Anyone who both participates in communicating the
deterrent threat and would be involved in executing it on the
day can personally be bluffing (i.e. can have the secret intention
not to do anything, on the day, towards executing it). (Anyone
who participates only in maintaining the system but who would
have no part in executing or not executing it on the day-e.g. a
backbench MP voting to fund it-cannot be bluffing, however
much he may hope that others are bluffing.) But the group act
cannotbe a bluff. For just as an individual's morally significant
act is defined by the proposal which he adopts by choice, so a
"
Here I differ from Scruton,who says (sec. III) that it is 'legally absurd and contrary
to natural justice' to hold the present membership 'individually liable for the deeds of
those to whom they have succeeded'. This is not clear to me; though English statute
law prevents it, the law of other systems provides for the personalliability of partnersfor
the debts and other liabilities of the partnership incurred before they joined. The
position is not less complex than I have indicated it in the text.
CORPORATE PERSONS
273
group's act is defined by its public proposal-i.e. by the form in
which it is proposedto membersof the group, for them to
participate in or not. And the public proposal of the deterrent is
not a proposal to bluff our adversaries.It is the proposal to deter
them by a manifestcapability and will to impose on them
'unacceptablelosses'.But the intentionalimpositionof such
lossespreciselysatisfiesthe definition,in Englishas in international law and in sound morality,of genocide.Therefore,
since the social act of maintainingthe deterrentcannot be a
bluff, but must involve the conditional intention to impose those
losses, everyone who chooses to participate in that social
act-including everyonewho is personallybluffing,andeveryone
who hopes'3that all who can be are-is choosingto participate
in a real social choice: to commit genocide under certain
foreseeableconditions.
The moralresponsibilityof all theseindividualparticipants
is a real personal responsibility.But it is clearly various,
accordingas one individualis personallybluffingandanotheris
not, one hopes that othersare bluffingand anotherdoes not
care, one participatesfor want of any otheremploymentand
anotherout of interestin maintainingour democraticorder,
and so forth.Yet themoralanalysisof andjudgementuponthe
social act of maintainingthe deterrentcan remainsingleand
unvaried:thisact involvesthe intentionto commitgenocideand
so I may not participatein it in any way or forany reason.The
differencesummarisedin the two precedingsentencesaffords
the strongestreasonI knowfor holdingthatsocialacts,though
constitutedby, are irreducibleto the actsof peoplein theacting
group.
IV
Scruton, having done what he could for it, finally drops the
'Hegelianclaim.. . that individualpersonalityrequiresfor its
fruitionnot only association,but also a personalrelationto the
corporationwhich is therebyformed'(sec. IX). Indeed,as he
foundedin non-contractual
says,'thereareassociations
obligation,
"
Against all the evidence-but let that pass. For the full story, factual and
andRealism
Deterrence,
conceptual,see Finnis,BoyleandGrisez,Nuclear
Morality
(OUP,
1987),ch. V.
274
II-JOHN
FINNIS
and which are also ends in themselves, but which have no other
features of corporate personality: love and friendship are the
prime examples'. To be improved by your associations, it is
enough that you 'be joined in fellowship with others, assigning
rights and duties to yourself and them' (ibid.). Thus Scruton
accepts the core of the central tradition of moral and political
reflection-in his paper incautiously given the same name as
currents which everywhere oppose it and for which Hobbes is a
source and master.
'Personality' is a distractingmetaphor in a realisticmoral and
political analysis of human associations and their actions. The
metaphor is always tugged between its two historic sources.On
the one hand, there is personaas mask; to this corresponds the
law's carefree attribution of legal personality to anythingthat
figures as the subject of legal relations, particularly litigious
and/or property relations: idols, funds, parcels of property on
the quayside, ships, the Crown. .. On the other hand, there is
personaas individual substance, of a rational nature (Boethius);
to this correspondsnothing (save metaphorically) in the many
orderings of human association which we call groups-nothing
except the people who are members.
Everything that Scruton wants to say about the injusticesand
inhumanity of Soviet social organizations can be said more
precisely than the distinction between 'thing-institution' and
'person-institution' allows. The distinction obscures its own
point, since it diverts attention both from the reduction of
people themselves to 'things' (mere means) in the machinations
of their rulers, and from the status of the (say) Stalinist Party as
at once 'person' (agent) and 'thing' (tool). The injusticesare all
done to people, whose well-being and fulfilment is seriously
injured by the restrictions upon, and manipulations of, the
various forms of asociation which they have, or might otherwise
have, with one another.
'Association' and 'community' (like 'organisation' and even
'structure') always best understood when considered as verbs,
and suffice, I suggest, for all Scruton's legitimate purposes.